HomeMy WebLinkAboutPermit 90-01-CA - CITY OF TUKWILA - ADULT ENTERTAINMENT CODE AMENDMENT90-01-CA CODE ADULT ENTERTAINMENT ORDINANCE
88-02-CA
ZONING CODE AMENDMENT
CITY OF TUKWILA
6200 SOUTHCENTER BOULEVARD, T UKWILA, WASHINGTON 98188
E. MARGINAL WY. - M2:
Federal Credit Union - Office
Randy's Restaurant
Boeing Flight Museum
Bakery Thrift Store
"Joy's Flight Approach" restaurant
King County Airport Office Center
"Fernando's" restaurant
"Annex" tavern
"Skaggen Marine"
"System Seven Repairs"
"Sound Ford"
"Puget Sound Tire"
"Holiday Inn"
"Ace Electric Service"
Boeing
W. VALLEY HWY. - Ml:
Hampton Inn
Embassy Hotel
2 vacant bldgs. (house and gas station)
"Easy Rider" canoe shop
Office Blg.
Racetrack paid parking lot
Wholesale paint sales
"Service America" office Bldg.
180th - M2:
Commercial parking lot for Pavillion Mall
"Krusteaz" office bldg.
ANDOVER PARK W. - CM:
EXISTING COMMERCIAL USES IN AREAS
WHERE ADULT BUSINESSES WOULD BE PERMITTED
Vacant office Bldg. (340 Upland Dr.)
"Jehlor Fantasy Fabrics"
Tukwila 600 office Bldg.
Southcenter Corporate Square office bldgs.
October 1, 1990
Page 2
Southcenter Professional Bldg.
Tempo 20 office bldg.
First Interstate Bank
"Little Deli Mart"
ANDOVER PARK E. - CM:
Boeing Computer Services
"Boardwalk" restaurant
Appliance parts
Printing Control
Pemco Claims
Tukwila Printing /Graphics
Nationwide Mattress & Furniture
U.S. Bank
CITY OF TUKWILA
WASHINGTON
ORDINANCE NO. ACS l
AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, REENACTING AND AMENDING
REGULATIONS FOR ADULT ENTERTAINMENT USES, AMENDING SECTION 18.06.825 OF
THE TUKWILA MUNICIPAL CODE TO DEFINE "ADULT ENTERTAINMENT ESTABLISHMENTS ",
ADDING A NEW SUBSECTION 18.38.020(16) TO THE TUKWILA MUNICIPAL CODE TO
ALLOW ADULT ENTERTAINMENT FACILITIES TO LOCATE IN THE C -M (INDUSTRIAL PARK)
DISTRICT, AMENDING SECTION 18.30.020(33) RELATING TO THEATERS IN C -2 ZONING
DISTRICTS, AND ADDING A NEW SECTION 18.70.110 TO THE TUKWILA MUNICIPAL CODE
REGARDING NONCONFORMING ADULT ENTERTAINMENT ESTABLISHMENTS.
WHEREAS, the City of Tukwila Planning Commission conducted a public hearing
at which it heard testimony, reviewed exhibits, and deliberated on the issue of
appropriate land use regulations governing adult entertainment establishments
in the City of Tukwila, and
WHEREAS, as a result of said deliberation, the Planning Commission adopted
findings and conclusions and formulated a recommendation to the City Council,
and
WHEREAS, having held further public hearings on the matter and having
considered the record before the Planning Commission and the recommendations of
that body, the City Council concurred in part with those recommendations and
adopted findings and conclusions, now, therefore,
THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Adult Entertainment Establishments Defined. Section 18.06.825
of the Tukwila Municipal Code is hereby amended to read as follows:
18.06.825 Adult Entertainment Establishments.
A. Legislative Findings. The City Council of the City of Tukwila,
Washington, declares that adult entertainment establishments as
defined in this chapter are permitted uses in the City of Tukwila.
In order to preserve and protect Tukwila's unique quality of life,
however, the City Council finds that adult entertainment
establishments must be situated so as to minimize contact with the
City's children, churches, parks, schools, libraries, and other
places where children and families gather.
The City Council finds further that Tukwila's experience, and the
experiences of other cities in and around Tukwila and in other areas
of the country, confirm that adult entertainment establishments can
lead to an increase in crime and unreported criminal activity, a
decrease in property values and the use and enjoyment of such
property by its owners, and to undesirable blighting of the city and
its neighborhoods. Accordingly, the City Council declares the
provisions of this ordinance as they relate to adult entertainment
establishments to be in the best interests of the citizens of the
City of Tukwila, simultaneously ensuring the protection of the
health, safety and welfare of Tukwila residents, while also
permitting adult entertainment establishments to locate in areas
comprising approximately twenty -five percent of the City of Tukwila.
B. "Adult entertainment establishments" means adult motion picture
theaters, adult drive -in theaters, adult bookstores, adult cabarets,
Page 1
adult video stores, adult retail stores, adult massage parlors, adult
sauna parlors or adult bathhouses, which are defined as follows:
1. "Adult bathhouse" is a commercial bathhouse which excludes
any person by virtue of age from all or any portion of the
premises.
2. "Adult bookstore" is a retail establishment in which thirty
percent or more of the "stock in trade" consists of books,
magazines, posters, pictures, periodicals or other printed
materials distinguished or characterized by an emphasis on
matter depicting, describing or relating to "specified sexual
activities" or "specified anatomical areas ".
3. "Adult cabaret" is a commercial establishment which presents
go -go dancers, strippers, male or female impersonators, or
similar types of entertainment and which excludes any person
by virtue of age from all or any portion of the premises.
4. "Adult massage parlor" is a commercial establishment in which
massage or other touching of the human body is provided for
a fee and which excludes any person by virtue of age from all
or any portion of the premises in which such service is
provided.
5. "Adult motion picture theater" is a building, enclosure, or
portion thereof, used for presenting material distinguished
or characterized by an emphasis on matter depicting, describing
or relating to "specified sexual activities" or "specified
anatomical areas" for observation by patrons therein and which
excludes any person by virtue of age from all or any portion
of the premises.
6. "Adult retail store" is a retail establishment in which thirty
percent or more of the "stock in trade" consists of items,
products or equipment distinguished or characterized by an
emphasis on or simulation of "specified sexual activities" or
"specified anatomical areas ".
7. "Adult sauna parlor" is a commercial sauna establishment which
excludes any person by virtue of age from all or any portion
of the premises.
8. "Adult video store" is a retail establishment in which thirty
percent or more of the "stock in trade" consists of prerecorded
video tapes, disks, or similar material distinguished or
characterized by an emphasis on matter depicting, describing
or relating to "specified sexual activities" or "specified
anatomical areas ".
C. "Specified anatomical areas" means:
1. Less than completely and /or opaquely covered human genitals,
pubic region, buttock, or female breast below a point
immediately above the top of the areola.
2. Human male genitals in a discernibly turgid state even if
completely or opaquely covered.
D. "Specified sexual activities" means:
1. Acts of human masturbation, sexual intercourse or sodomy; or
2. Fondling or other erotic touching of human genitals, pubic
region, buttock or female breast; or
3. Human genitals in a state of sexual stimulation or arousal.
Page 2
E. "Stock in trade" means:
1. The dollar value of all products, equipment, books, magazines,
posters, pictures, periodicals, prerecorded video tapes, discs,
or similar material regularly available in the normal course
of the business of that establishment and readily available
for purchase, rental, viewing or use by patrons of the
establishment, excluding material located in any store room
or other portion of the premises not regularly open to patrons;
or
2. The number of titles of all products, equipment, books,
magazines, pesters, pictures, periodicals, other printed
materials, prerecorded video tapes, discs, or similar material
regularly available in the normal course of the business of
that establishment and readily available for purchase, rental,
viewing or use by patrons of the establishment, excluding
material located in any store room or other portion of the
premises not regularly open to patrons.
Section 2. Adult Entertainment Establishments allowed in C -M District.
A new subsection 18.38.020(16) is hereby added to the Tukwila Municipal Code to
read as follows:
(16) Adult entertainment establishments, subject to the following location
restrictions:
A. No adult entertainment establishment shall be allowed within the
following distances from the following specified uses, areas or
zones, whether such uses, areas or zones are located within or
outside the City limits;
1. In or within 1,000 feet of any R -1, R -2, R -3, R -4, or RMH zone
district or any other residentially zoned property;
2. In or within 1,000 feet of:
a.
public or private school with curricula equivalent to
elementary, junior or senior high schools, or any
facility owned or operated by such schools, which has
twenty -five percent or more of its students under the
age of eighteen; and
b. care centers, preschools, nursery schools or other child
care facilities.
3. In or within 1,000 feet of:
a. public park, trail, or public recreational facility; or
b. church, temple, synagogue or chapel; or
c. public library.
B. The distances specified in subsection A shall be measured by
following a straight line from the nearest point of the property
parcel upon which the proposed use is to be located, to the nearest
point of the parcel of property or land use district boundary line
from which the proposed land use is to be separated.
C. No adult entertainment establishment shall be allowed to locate
within 1,000 feet of an existing adult entertainment establishment.
The distance specified in this section shall be measured by following
a straight line between the nearest points of public entry into each
establishment.
Section 3. Theaters in C -2 Districts. Section 18.30.020(33) of the
Tukwila Municipal Code is hereby amended to read as follows:
Page 3
(33) Theaters, except those theaters which constitute "adult entertainment
establishments" as defined by this Code.
Section 4. Nonconforming Uses. A new section 18.70.110 is hereby added
to the Tukwila Municipal Code to read as follows:
18.70.110 Nonconforming Adult Entertainment Establishments; Extensions
of Time. Notwithstanding any other provision of this Chapter, any adult
entertainment use or establishment which is rendered nonconforming by the
provisions of Ordinance of the City shall be terminated or
discontinued within 90 days from the effective date of that ordinance.
A. The owner or operator of any adult entertainment use or establishment
which is rendered nonconforming by the provisions of Ordinance
of the City may appeal the 90 -day termination provision of this
section by filing a notice of appeal with the City Clerk within 60
days of the effective date of this section.
B. Within 10 days of receipt of a notice of appeal, the City Clerk shall
schedule a hearing on the appeal before a hearing examiner. The
hearing shall be no later than 20 days from the date of receipt by
the City of the notice of appeal, unless extended by mutual agreement
of the parties. The hearing examiner shall be the City Clerk or
his /her designee.
C. Within 3 days, excluding weekends and holidays recognized by the
City, from the date of the hearing on an appeal under this section,
the hearing examiner shall issue a written decision, which shall set
forth the hearing examiner's findings of fact and conclusions of law.
The hearing examiner shall consider the following factors and any
other factors that he /she determines to be relevant or helpful in
reaching a decision:
1. The harm or hardship to the appellant caused by the 90 -day
termination provision of this section;
2. The benefit to the public to be gained from termination of
the use;
3. The nature of the leasehold or other ownership interest that
an appellant may have in premises occupied by the adult
entertainment use;
4. Restrictions or lack of same imposed on an appellant's use of
such premises by a lease or other binding agreement;
5. Amounts expended by an appellant for improvements to such
premises or for necessary equipment and the extent to which
those amounts have been recovered through depreciation, tax
savings, or whether such improvements are contemplated to be
left as property of the lessor; and
6. Any clear evidence of substantial economic harm caused by
enforcement of the 90 -day termination provision of this
section.
D. Appeal and hearing:
1. Any person aggrieved by the action of the hearing examiner in
refusing to extend beyond 90 days the period in which a
nonconforming use must terminate operations shall have the
right to appeal such action to the City Council, by filing a
notice of appeal with the Clerk within 10 calendar days of
receiving notice of the decision of the hearing examiner.
2. The City Council, upon receipt of a timely notice of appeal,
shall set a date for a hearing of such appeal within 20 days
from the date of such receipt. The City Council shall hear
testimony, take evidence and may hear oral argument and receive
written briefs. The filing of such appeal shall stay further
action of the City, pending the decision of the City Council.
Page 4
3. The decision of the City Council on an appeal from a decision
of the hearing examiner shall be based upon a preponderance
of the evidence.
4. The decision of the City Council shall be final unless appealed
to the superior court within 20 days of the date the decision
is entered.
Section 5. Severability. If any section, sentence, clause or phrase of .
this ordinance should be held to be invalid or unconstitutional by a court of
competent jurisdiction, such invalidity or unconstitutionality shall not affect
the validity or constitutionality of any other section, sentence, clause or
phrase of this ordinance.
Section 6. Effective Date. This ordinance shall take effect and be in
full force five (5) days after publication of the attached summary which is
hereby approved.
PASSED BY THE CITY COUNCIL OF HE CITY OF TUKWILA, WASHINGTON, at a regular
meeting thereof this /- day of , 1990.
ATTEST /AUTHENTICATED:
(1
CITY CLERK, JANE CANTU
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By / ' �G c 1 4 :4. /
W \TUKW \007ENT.OR -3
APPROV
FILED WITH THE CITY CLERK: 9-a 7- 9
PASSED BY THE CITY COUNCIL: /4,..../-90
PUBLISHED: /0- `J- f
EFFECTIVE DATE: /p -01-- CI
ORDINANCE NO. )S
OR, GARY L. VAN DUSEN
Page 5
CITY OF TUKWTLA
wr di'THiI:.\TF.'kF( it'E1 :4RD. T/'h' IIiL:I. II:A SHI.VG TON 9H/NN
To: Mayor, Gary Van Dusen
From: Jack Pace, Senior Planner
Date: September 25, 1990
Subject: Adult Entertainment Ordinance
The purpose of the proposed ordinance is not to ban all forms of
adult entertainment, but to designate appropriate•locations.and
to develop standards for this type•of use. The major concern
expressed at the City Council hearing was the termination of uses
rendered non- conforming.
The proposed ordinance. would require nonconforming Adult
Entertainment Business to comply within 90 days after the
adoption• of the Ordinance. The appeal provision, which allows
the extension of the 90 day period for up to two years, is
established to help mitigate any economic.harm which may be
caused by virtue.of the 90 day non - conforming use provision.
This provision is based upon the Northend Cinema, Inc. v.
Seattle, in which the Washington Supreme.Court'upheld two Seattle
ordinances 'which required the termination of all nonconforming
adult motion picture theaters within 90 days.
All the existing adult businesses in Tukwila either abut or are
within 1000 feet of residential. zoned. property. Given the
proximity.to existing residential uses and the desire to
:encourage redevelopment along Interurban and Highway 99, staff
.`has recommended these uses be treated differently than other non-
conforming uses.
At the City Council meeting, staff will present'a map showing the
proposed location for adult. businesses and amount of land
.:availability in the various zones. In addition, will
present an inventory of existing commercial businesses 'in the
various industrial zones.
PHONE 433•Mln)
Gary L, linthu..• rt. Mayur'
Gary D. Gayton
OF COUNSEL
2600 Columbia Center 701 Fifth Avenue Seattle, Washington 98104 -7
Telephone: 206 623 -1330 Facsimile: 206 386 -5386
Honorable Joan Hernandez
President, Tukwila City Council
15224 Sunwood Boulevard
Tukwila, WA 98188
SYLVESTER RUUD PETRIE & CRUZEN
ATTORNEYS AT LAW
September 24, 1990
Re: Adult Business Entertainment Ordinance
Dear Council President Hernandez:
\tocT 0 119
c}
PLANNING EP i . D „, .
The information that Jack Burns furnished to you and the
Council on September 17 on behalf of Little Darlins Enterprises,
Inc. is essentially correct. I checked with the King County
Police, Sgt. Frank Kinney of the Vice Squad, and he verified Jack
Burns' testimony, with the exception that Little Darlins, as far
as his records indicate, went into business December 1988, while
Jack Burns' records reflect that the lease for the establishment
commenced six months prior to that time. However, there is no
showing of a "pattern or practice" of criminal activity. I am
certain that major motels in this area would not have as good a
record.
Under the circumstances, there is insufficient evidence to
justify a departure from long- standing policy which has granted
non - conforming user status an existing business when there is a
zoning change.
There is little benefit for me to repeat Mr. Burns' testi-
mony and the information contained in his and my letter. I
respectfully urge you to grant non - conforming user status to
Little Darlins.
MP1 /g31.1
R pectfully , ubmitted,
in I
Tukwila City Council
City of Tukwila
6200 Southcenter Blvd.
Tukwila, WA 98188
SUBJECT: Adult Entertainment Ordinance
Dear Councilmembers:
Sincerely,
Advisory Council
4115 South 139th Street •
Tukwila, WA 98168
September 20,1990
As advocates for the interests of children in our school district
Advisory Council has been concerned about the location and
expansions of adult entertainment businesses in our community.
We feel these businesses do not belong next to residential
neighborhoods nor near schools. Our children have a right to
feel safe as they walk to school, the store, the bus stop, or
to church. Businesses that advertise nude dancers and strippers,
that display offensive signs are not part a safe neighborhood.
We applaud the efforts of the police to remove prostitutes and
drug dealing from our area; but what sense does it make to then
allow businesses that attract those elements to this same area?
We are also concerned about the stated intentions of these
businesses to expand their operations. We understand that
Dandy's would like to add female strippers and Little Darlings
would like a liquor license. This further increases our fear
the the . highway could become one long "sin strip."
With the construction of a new high school and the recent .
annexations to Tukwila, we are entering a new period of community
pride and revitalization. We hope that Tukwila, just like
Seattle, can be a "Kids Place." Therefore, to ensure the safety
of our children, we support the adult entertainment ordinance.
Pam Carter
President
Advisory Council
P.S. There would be more citizen comment on many issues if
there were some way to learn of Council agendas in advance
Very few are able to pick up agendas the day of a Council
meeting. How could this be improved?
.S5
September 18, 1990
Gary VanDusen, Mayor
Joan Hernandez, Council President
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Dear Sir and Madam:
Re: Adult. Entertainment Ord.
Regrettably, we were not aware that a hearing had been
scheduled on September 17 with regard to the Adult
Entertainment Ordinance. Please accept this letter in lieu
of our testimony at that hearing.
We strongly support the council's proposed changes to
Tukwila's current ordinance.
The issue.is appropriate land use. Adult- entertainment
establishments should not be permitted in the vicinity of
residential areas, churches, schools, parks, or playgrounds..
By no stretch of.the imagination could an adult
entertainment business be considered as, innocent as an
appliance store or gas station; if that were the case, there
would certainly not be the financial incentive to run an
adult business. The industrial areas provide a more:
appropriate'zone for adult businesses, and therefore we
recommend that.the ordinance changes be enacted and
enforced.
In the past, our newly annexed neighborhoods have been
adversely impacted by. unregulated business situations,. Ir
there. ever was an opportunity for the city to reverse such
inappropriate land ,use, this is it The families of Tukwila
deserve to, be relieved from the negative influence of adult
entertainment businesses in their neighborhoods.
The businesses in question will not suffer undue loss of .
patronage, nor. will they be inhibited to pursue their form
of freedom of expression, if they relocate toAmore suitable
zones. Such regulation does not constitute prohibition.
Sincerely,
Ron Lamb and Nandy Sandine Lamb
4251 South 139th Street
Tukwila, WA 98168
Published Valley Daily News - September 2, 1990 ri
CITY OF TUKWILA
NOTICE OF PUBLIC HEARING BY THE
TUKWILA CITY COUNCIL
NOTICE IS HEREBY GIVEN that the Tukwila City Council will conduct a Public Hearing
on the 17th day of September, 1990, at 7:00 p.m. in the Council Chambers of Tukwila
City Hall, 6200 Southcenter Blvd., Tukwila, to consider the following:
REVISIONS TO ADULT ENTERTAINMENT ORDINANCE
Any and all interested persons are invited to be present to voice approval, disapproval,
or opinions on same.
CITY OF TUKWILA
Jane Cantu
City Clerk
DATE: September 13, 1990
TO: Mayor, Gary Van Dusen
FROM: Jack Pace,•Senior Planner
Department of Community Development
SUBJECT: Adult Entertainment Ordinance Revisions
BACKGROUND:
The City Council passed Ordinance No. 1465 on June 6, 1988
amending Sections. 18.06.035 of the Tukwila. Municipal Code to
define " Adult Entertainment " Establishments ", adding a new
'subsection, 18.42.020(7), allowing adult entertainment
establishments to locate in M -2 (heavy industry) districts
subject to certain restrictions. The ordinance also amended
Section 18.30.02003) relating to theaters in a C -2 zone and
added a new section, 18.70.010, regarding nonconforming adult
entertainment establishments.
On October 26, 1989, Hon. Mary Wicks Bucker, Judge of the
Superior Court, declared Ordinance No. 1465 unconstitutional.
The Court was apparently troubled by the 10 percent "stock -in-
trade" provisions of certain adult use definitional sections, in
that the City "had the opportunity to study the actual effects of
an adult entertainment business within its confines and failed to
do so ", and that, consequently, the Ordinance failed "to afford
adult entertainment establishments a reasonable opportunity to
conduct business in the City of Tukwila."
PROPOSED REVISIONS:
The ordinance contained in the staff report dated July 12 1990
recommended three revisions to the City's Adult Entertainment
Ordinance.
1. Revised stock -in -trade definition to read 30% rather than
10 %.
2. Proposed addition of the M -1 and CM zones to the M -2 zone.
3. Established an avenue for administrative appeal for the
conformance of non- conforming adult uses.
MEMORANDUM
ATTACHMENT A
Page 2
The Planning Commission's recommended ordinance (Appendix B) to
the City Council contains modifications in three areas.
1. Adding Adult Business as a permitted use in the M -1 zone and
excluded from the CM zone.
2. Increasing the distance from schools to 2000'.
3. Modifying the administrative appeal process where by the City
Council would review the appeal and not the Board of
Adjustment.
CONCLUSION:
The City Attorney believes by retaining the 1000' from schools
standard and adding the CM zone will have less obstructive impact
on the freedom of expression rights.
Gary D. Gayton
OF COUNSEL
September 6, 1990
Honorable Dennis L. Robertson
Member, Tukwila City Council
16038 - 48th Avenue South
Tukwila, Washington 98188
Dear Mr. Robertson:
SYLVESTER RUUD PETRIE & CRUZEN
ATfORNEYS AT LAW
Re: Adult Business Entertainment Ordinance
2600 Columbia Center 701 Fifth Avenue Seattle, Washington 98104 -7088
Telephone: 206 623 -1330 Facsimile: 206 386 -5386
TX-1 Nig111)
SEP 111990
67 176 I •i WeL A
PLA jDEPr •
Please be advised that I am counsel along with Jack Burns to
Little Darlins Enterprises, Inc. ( "Little Darlins "). I have
enclosed a letter sent by Jack Burns to Jack Pace after he
reviewed the Supplemental Staff Report to the Planning Commission
dated July 12, 1990. It is my understanding that this letter
will be part of the material that will be before you at the
Council Hearing on September 17, 1990. There are several aspects
of this letter that I believe should be brought to your atten-
tion:
1. That there is insufficient basis presented to terminate
uses rendered non - conforming.
2. The state constitutional standards differ markedly from
the standard imposed by the First Amendment to the United States
Constitution. There is a lack of evidence that Little Darlins
has created or is likely to create significant secondary effects
and therefore there is no sufficient legal basis to justify
restricting their business activities at their chosen location.
3. Generally when an annexation takes place, the City of
Tukwila Zoning Codes grant non - conforming user status to all
businesses that existed in an area annexed into the city.
Generally speaking, regardless of the impact such a business may
have in an area, businesses or homeowners complain when they
September 6, 1990
Page two
MP1 /g27
Enclosure
learn such a business will be locating in an area. The evidence
indicates there has been little if any problems created by this
business. Why should the city create a problem by having them
locate elsewhere especially under the legal circumstances stated
and thoroughly presented in Jack Burns' letter?
I live at First and Blanchard in Seattle in a highrise condo.
An adult bookstore moved into the area and in the process there
was a great disturbance because people in my condo and others
thought that the negative things would happen similar to those
that appeared in the staff report. The adult book store was
allowed to move in. Since that time there has been no problem
that we are aware of and the value of our condos have increased
nearly 50 %.
I respectfully request that you grant non - conforming user
status to the existing businesses.
R-'•ectfully /.ubmitted,
*ILA
City Of Tukwila ATTACHMENT C
6200 Southcenter Boulevard
Tukwila Washington 98188
(206) 433.1800
Cary L. vanOusen, Mayor
90 -1-G - RIVISI OP 11DOL? >t!1'!1lTAI�M't'O#DII C!
Jack Pace reviewed the Staff Report noting that staff recommends
three revisions to the Adult Entertainment Ordinance.
1. Revised stock -in -trade definition to read 30% rather than
. 10%, based on local survey data and the survey used in the
Attorney General's Report.
2. Proposed addition of the x -1 and CY sones to the 1t -2 sons.
3. Establish and avenue for administrative appeal for the
conformances of non- conforming adult uses.
The first speaker. was Kr. Gilbert Levy the attorney. for Worldwide
video located at 14095 Interurban Ave S.
Mr. Levy said he had sent a letter to the Planning Department,
which Jack Pace graciously explained they hadn't received as. of
the hearing.
CITY OP TUKWILA
PLAMlf1IIG CoifDtIS8101
JOLT 19,1990
The meeting was called to order at 8 :05 p.m. by Chairman Jim
Haggerton. Members present were Messrs. Haggerton, Hamilton,
Flesher, Rirsop, Knudson, Gomez and Melina.
Representing the staff were Jack Pace, Mike Kenyon, Keith Haines,
Ron Waldner and Diann Martine*.
Mr. Haggerton asked for nominations for Vice Chair, noting that
Mr. Cagle had boon the Vice Chair previously.
Mr. Domes nominated Mr. Kirsop who declined the nomination and in
turn nominated Mr. Hamilton.
Mr. Hamilton was voted Vice Chairman for the remainder of the
year.
CITY OF TORWILA
PLANNING COMMISSION
JOLT 19 1990
The meeting was called to order at. 8105 p.m. by Chairman Jim
Haggerton. Members present were Messrs. Haggerton, Hamilton,
Flesher, Kirsop, Knudson, Gomez and Malin.
Representing the staff wore Jack Pace,. Mike Kenyon, Keith Haines,
Ron Waidner and Diann Martinez.
Mr. Haggerton asked for nominations for Vice Chair, noting that
Mr. Cagle had been the Vice Chair previously.
Mr. Games nominated Mr. Kirsop who declined the nomination and in
turn nominated Mr. Hamilton.
Mr. Hamilton was voted Vice Chairman for the remainder of the
year
90-1-CA, - R.IVISItV OP ADULT ECIU &I11} . �1'1'_�IY ,=
Jack Paco reviewed the Staff Report no::ng that staff recommends
three revisions to the Adult Entertainment Ordinance.
1. Revised stock -in -trade definition to read 300 rather than
10%, based on local survey data and the survey used in the
Attorney General's Report.
2. Proposed addition of the H -1 and Cat zones to the M -2 sone.
3. Establish and avenue for administrative appeal for the
conformance of non- conforming adult uses.
The first speaker was Mr. Gilbert Levy the attorney for Worldwide
Video located at 14055 - Interurban Ave S.
Mr. Levy said he had sent a letter to the Planninq•..OSparteent,
which Jack Pace graciously explained they hadn't received as of
the hearing.
Planning Commission Minutes
Page 2
Mr. Levy reviewed what the letter contained:
He stated that his client's business is the sexually explicit
material which is also known as pornography. :Pornography is not
illegal unless it is found to be legally obscene under the United
States Supreme Court's definition of obscenity. Most juries
don't like the idea of sending someone to jail for selling a book
even if the book's sole purpose is sexual titillation.
very careful statistics are kept at the Tukwila Police Department
concerning police calls and crimes occurring at the various
addresses in the neighborhood. According to these statistics,
the . other businesses in the neighborhood generate many more .
police calls involving reports of serious crises including
robbery, assault and theft than does my client's: business.
While a certain amount of lewd , conduct does` in fact occur at my
client's business premises, the statistics demonstrate that much
more public masturbation and homosexual activity occurs in the
public rest rooms in Southcenter Nall or. at Port Dent Park.
At least more crimes of this nature get reported from South
Center and Fort Dent Park because such activity at those
locations is more likely to offend people. The reason that the
lewd conduct at my client's business doesn't get reported is
basically nobody cares except for the pro - censorship groups and
the City Attorney's Office.
Nobody wants to close down the public rest rooms in the South
Canter Mall or close down Port. Dent Park. Nobody wants to cause
the night club, the two taverns, and the card room to relocate to
the industrial district.
If you owned a small business or opened a small business . and the
city government told you that the only place you could locate
that business was the industrial some, wouldn't you feel you were
being victimised by unfair discrimination?
The City of . Tukwila is attempting to ban pornography by means of
zoning legislation but is pretending to do something e se. What I
ad suggesting is that you ought to be honest , and . forthright about
what you are doing or not do it at all. The City Attorney's
Office has at its disposal other legal tools which would allow it
to deal with obscenity and other law enforcement problems which
are claimed to be associated with Rip client's ,business. I am
specifically referring to the Moral Nuisance Statute or general
public 'nuisance laws.
Planning Commission minut•s
Page.3
second speaker was Jack Burns - Attorney that represents Little
Darlins and represents Theresa & Dan who operate Dandy's. Both
businesses are located on Pacific Highway S.
Mr. Burns states that this ordinance would take ay clients out of
existence. Part of the annexation was that all those conforming
businesses would be grandfath•red in, with this Ordinance you
would be breaking that promise and make those businesses non
existent •
If you are infect going to make those businesses move your going
to put -hen out of business. You all know if you move a business
whether you put the same name on the business or not it won't be
the same place.
I suggest if you do take them out of business you pay them full
market value for there business not their historical investment
cost but what it's worth today.
That you should do is find the zoning ordinance that's
comfortable for you but grandfather the ones that are here in and
give them non-conforming status.
1 heard the Police Chief State that since the annexation that
Little Darlin's hasn't had anymore reported crime than any other
business in the city.
The next area of concern has to do with blighting, that is a
legitimate concern. I agree where the city doesn't want noon
colors or yellow front bookstores, but you can solve these
problems with your design review board.
Mr. Haggerton closed the Public Bearing at 9s04 p.a. and opened
the discussion for the Planning Commission.
Mr. Hamilton was concerned that the Nigh Schaal is so close to
these places, he feels it should be further away and there should
be something stating that.
Mr. Haggexton vas concerned of the effect adult businesses have
on the youth in the area.
Mr. Hamilton agreed, there should be a significant distance from
schools, churches, playgrounds.
Mt. Plesher believes 2000 feet from schools would be a good
distance.
Mr. Haggerton entertains a motion.
MR. RNUDSON SECONDS.
NOTION UNANIMOUSLY APPROVED.
Planning Commission Minutes
Page 4
Mr. Hamilton would like to have C -M removed and just have M -1 and
M -2.
MR. MALINA MOVES TO CHANGE THE DISTANCE FROM. SCHOOLS TO 2000 FEET
FROM SCHOOLS, AND TO HAVE ADULT. ENTERTAINMENT BUSINESSES IN THE
M -1 AND M -2 ZONES.
MR.HAMILTON SECONDS THE MOTION.
ALL IN FAVOR WITH MR. GOMEZ APPOSED.
MOTION APPROVED
Stock and Trade, from 10% to 30%:
MR. KIRSOP MOVED TO CHANGE STOCK AND TRADE FROM 10 T0. 30 S.
MR. PUSHER SECONDED THE MOTION.
ALL IN FAVOR WITH MR. KNUDSON APPOSED.
Appeal process.
MR. FLESMER MOTIONS TO HAVE TO RIGHT TO APPEAL TO THE CITY
COUNCIL.
MR: MALINA SECONDS THE MOTION.
MOTION UNANIMOUSLY APPROVED.
Mr. Kirsops Supposing we lose, how is our sign code. Do we allow
flashing lights and such?
Mr. Pacer We don't allow flashing lights and the only time we
control color is when it interferes with traffic signals.
MR. KIRSOP MOVES TO RECOMMEND THAT WE ADOPT BASED ON THE
TESTIMONY GIVEN WITH THE FOLLOWING CHANGES, DELETE C -M, CHANGE
THE TUT, AND CHANGE TO 2000 FOOT DISTANCE FROM AN! PUBLIC
SCHOOL, CHANGE STOLE AND TRADE FRON 10 ` t TO 30 t .: AMD CHANGE THE
RIGHT TO APPEAL FROM THE BOARD OF ADJUSTMENT TO TEE CITY comm.
Planning Commission Minutes
Page 5
DIRECTORS REPORT:
July 26th meeting cancelled.
August 9th tentative date for nut planning commission hearing.
SAO meeting on July 25 & 26th cancelled.
August 23rd tentative date for extra planning commission meeting.
MR. NAGGERTON MOVED TO ADJOURN, NOTION UNANIMOUSLY APPROVED.
MEETING ADJOURNED AT 10:15 P.K.
Rasps tftilly Submitt
Diann Mar
LAW orr►CES OF
Burns and Hammerly, P.S.
Tukwila Planning Commission
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
500 - 108th Avenue N.E. • Suite 770 • Bellevue, WA 98004 • (2061646 -6546 • FAX K (2061454.6195
July 16, 1990
JACK R. BURNS
MARY L. HAMMERLY
Attention: Jack Pace, Senior Planner
This office represents Little Darlins Enterprises, Inc. which
operates an adult business known as Little Darlins, and Walt
and Teresa Szafryk who operate an adult business known as
Dandy's. Dandy's is presently located .. within the boundaries of
the City of Tukwila. Little Darlins will be located within the
City of Tukwila once the recent annexation becomes effective.
On behalf of these two businesses, I have reviewed the
Supplemental Staff Report regarding adult entertainment and the
proposed ordinance revisions. In summary, it is my belief
that, as a matter of law and as a matter of policy, there is an
insufficient basis presented to terminate uses rendered
nonconforming by the ordinance as proposed in new Section
18.170.110.
As noted in the Supplemental Staff Report, legal decisions of
the United States Supreme Court provide guidance and restraints
upon the city's ability to regulate adult entertainment uses
through zoning. The Supplemental Staff Report, in large part,
accurately describes the holdings of the pertinent legal
decisions. Significantly, however, the report omits any
reference to state law decisions. Decisions of our state
Supreme Court ha4e interpreted the Washington State
Constitution to provide more protection to speech than does the
First Amendment to the United States Constitution.
Under Article I, S5 of the Washington State Constitution, a
time, place. or manner restriction upon speech may •only be
imposed when. there has been a showing of past abuse of speech.
rights and, then,`only it the regulation is content - neutral,
and narrowly tailored to serve a. compelling governmental.
interest. Bering v. Share, 106 Wn.2d 212•(1986). This state
constitutional standard differs markedly from the .standard
imposed by the First Amendment to the United States
Constitution as enunciated in the decisions of the United
•
Given the lack of any
Dandy's or Little Darli
significant secondary
basis to justify restri
chosen locations.
1. During the ann
owners in the affected
would be allowed to cont
States Supreme Court in Young v. American Mini Theatres and
City of Renton v. Playtime Theatres, the cases cited and relied
upon in the Supplementa Staff Report.
pirical evidence that the business of
s has created or is likely to create
ffects, there is no sufficient legal
ting their business activities at their
Furthermore, as a matte of policy, there are no sound reasons
to depart from the established standard of granting
nonconforming user stat s to existing businesses when there is
a change in the zonin. code. The business of Dandy's was
properly located and li•ensed prior to its annexation into the
City of Tukwila. Simil rly, the business of Little Darlins is
currently legally opera ing will continue to be so when it
is finally annexed into the City of Tukwila. Generally, when
an annexation takes pl -ce, the City of Tukwila zoning code
grants nonconforming use status to all businesses that existed
in areas annexed into t e City. For several- reasons, the City
should not depart from this well-established practice and
standard.
!cation campaign and process, property:
yeas where assured existing uses,
nue'as nonconforming users.
2. Neither the b siness of Dandy's nor Little Darling
presents any significan secondary effects that would justify .
differential treatment f om other nonconforming users.
particular, in a re ent hearing._before the Tukwila City:
Council, the Chief • o Police, of the City: of Tukwila•
acknowledged that Dandy' -, since its annexation into the City:'
of Tukwila, had presen ed no significant law' .enforcement''
problems.: Any law enfor •ement.activity. associated ' with •Dandy's'
was-similar to or less than : presented by any other
drinking or entertainmen establishment.
With respect to Little D- rlins,'prior..to January, 1990, Little.
Darling operated using a business format. which exempted_it from
the, requirements of the ing. County Code :that'it be licensed as
adult entertainment •usiness. In' particular,' prior to•
January, 1990, 'no dancer appeared nude or,partially In.
January, .1990, the 'Kin County Superior. Court'.authorized.
Dandy's to proceed • to operate as an. adult entertainment
facility. After that de ision, the only change .in' the manner
of operation of the business was that dancers appeared nude or
partially nude on a stage which was located six feet from the
nearest patron. Otherwise, the operation of the business
remained unchanged. Subsequent to that business format change,
there has been no impact on the surrounding community in terms
of increased crime or other adverse, secondary effects.
Based upon my experience, the experience of Little Darlins and
the experience of Dandy's, adult cabarets have no effect
whatsoever external to the business in the form of
demonstrable secondary effects which would justify terminating
a nonconforming user.
Analysis of the staff - report supports this view.
1. The staff report and draft ordinance suggest that a
secondary effect of adult cabarets is a decrease is property
values. To my knowledge, no' study has been done on the effect
of adult cabarets on surrounding property values. In my
practice, I have had occasion to review tax and appraisal
records for adult cabarets, and similar records for surrounding
properties.. Based on that review, I can find no negative
effect of adult cabarets on surrounding property values.
In conversations with Jack Pace', Senior Planner, he indicated
to me that the City has not undertaken any independent study of
the effect' of adult cabarets on surrounding property values.
Accordingly, it appears.as if this is an insufficient basis
upon which to deny nonconforming user status to adult cabarets.
2. Another justification offered for regulating' adult
cabarets is an increase in crime and unreported criminal
activity. As indicated above, the experience of this City with
Dandy's, and Ring County with Little-Darlins, will.not support
,s conclusion that, the existence of adult cabarets:leads to an
increase in unreported crime and criminal activity. Just to
the contrary, the Chief of Police indicated that since Dandy's
annexation into Tukwila, the City has not experienced any
unusual or increased level of law enforcement activity.
The unreported criminal activity referenced by the Supplemental
Staff Report at page 4 is unique to that., particular kind of
business.. Furthermore, the report is so nonspecific'as to be
.meaningless in analyzing the nature of the "unreported criminal
activity."
3. The report and proposed ordinance suggest.. that adult
cabarets somehow result in "undesirable blighting of the city
and its neighborhoods." If blighting is a problem, and there
is no evidence in the Supplemental Staff 'Report to suggest that
it is, blighting can be dealt with directly, :rather than
indirectly by forced amortization. If blighting does exist,
the . proper approach is to remedy the blighting rather than to
move it down the street or around the corner. If the blighting
is caused by visual clutter, exterior landscaping, signage, or
exterior paint color, all of those matters can and should be
dealt with directly by regulations directed at the specific
evil perceived. The goal of the City should be to cure and
remedy the blight, not hide it.
Finally, if the decision is made to proceed with amortization,
my clients believe that the amortization process must take into
account the value of their businesses as a going concern, not
historical investment value. The actual and real effect of
amortization is to take a valuable property interest from a few
for the greater good of the City. As such, the state and
federal constitutions require that the government provide fair
compensation.
A going business on Pacific Highway South has a value. It is
not sufficient to say that you can locate that business
somewhere else because that relocation has a coat and, more
importantly, the new business, at least at the outset, is not
going to generate the same revenues as the old.
Section 18.70.110(C)(5) contemplates using .historic investment
as a measure of fair value for purposes of compensation; i.e.
the Hearing Examine will determine in some form that a certain
period of time will allow recovery of the historic investment.
A brief example will show that this method is simply inadequate
to compensate a business owner for the taking of his business.
Assume that a restaurant in the Southcenter area was purchased
twenty years ago for. $20,000. Today, even though after
modernization and renovations have been recouped through
depreciation, the restaurant has a market value of $2,000,000.
To say to a business owner that he is only entitled to recover
his original $20,000 investment simply ignores his reasonable
investment based expectations and the realities of what
government is taking. Additionally, it would treat such an
owner unfairly when considered with a business: owner who had
recently purchased a similar restaurant in the area for
$2,000,000, but had, had no time to recover his initial
investment.
The procedures of Section 18.70.110(C)(4), which would
apparently be used to shorten the amortization period. if
leasehold premises could be used for another purpose, are
similarly unrealistic. A businessman who runs a restaurant is
generally not equipped or knowledgeable in running a retail
store or other kind of business. Adult business owners are not
general retailers. By telling them that they cannot operate
their chosen business, the effect is to put them out of
business. The result is a taking that should and must be
compensated.
My clients respectfully submit that the only fair and equitable
manner, consistent with the state and federal constitutions, to
amortize an existing, nonconforming use out of existence is to
take into account the fair market value of the business at the
effective date of the ordinance and then, either pay that value
to the business owner for the taking, or allow a reasonable
time, based upon generally accepted accounting principles, to
recover that value.
In conclusion, my clients respectfully urge the Planning
Commission to carefully review the empirical evidence offered
to support the amortization provisions of the proposed
ordinance. Upon that review, we are convinced that you will
find that there is insufficient evidence to justify a departure
from long- standing policy which has granted nonconforming user
status to existing businesses when there is a zoning change.
We urge you to apply those standards consistently to this
proposed zoning change and direct your attention, not to
existing businesses, but to future businesses, in an attempt to
solve those problems that may occur in the future.. The weight
of the evidence is that there are no current problems which
cannot be dealt with by regulations less intrusive upon the
protected speech activities of my clients.
JRB:sm
Very truly yours,
JACK R. BURNS
63
City of Tukwila
6200 Southcenter Boulevard
Tukwila Washington 98188
(206) 433.1800
Gary L. VanDusen, Mayor
HEARING DATE:
FILE NUMBER:
APPLICANT:
REQUEST:
SEPA
DETERMINATION:
ATTACHMENTS:
STAFF REPORT
TO THE
PLANNING COMMISSION
Prepared July 12, 1990
ATTACHMENT D
July 19,1990
90 -1-CA
City of Tukwila
Revision of Adult Entertainment Ordinance
Amended DNS
(A) Bibliography (blue)
(B) Survey of area video rental outlets (pink)
(C) Synopsis of Zoning Acreage (green)
(D) Amended Adult Business Ordinance (white)
(E) Tukwila Zoning Map (Submitted at Public Hearing)
SUPPLEMENTAL STAFF REPORT
90 -1-CA
Page 2
FINDINGS
i
BACKGROUND
In 1980, following the Supreme Court decision in Playtime Theatres Inc. v. City of
Renton, the City of Tukwila Adult Entertainment ordinance was drafted. The suc-
cess of the City of Renton ordinance, which restricted adult uses to specific zones,
provided a pattern for Tukwila's Adult Entertainment Ordinance. The City was
taking a pro - active approach to this controversial issue.
Since 1980 the City has changed dramatically. During the past two years especially,
there has been tremendous growth in both population, land area and economic
activity. In 1988 the time came to address some of these changes in the community
in a new ordinance. The Planning Division staff began preparation of an ordinance
establishing new zoning standards for adult business uses. March 7, 1988, a Staff
Report was prepared outlining the criteria and background for such action. Staff
recommended the adoption of a new ordinance relating to the zoning of adult
entertainment uses.
The City Council passed Ordinance No. 1465 on June 6, 1988 amending Sections
18.06.035 of the Tukwila Municipal Code to define "Adult Entertainment Establish-
ments", adding a new subsection, 18.42.020(7), allowing adult entertainment estab-
lishments to locate in M -2 (heavy industry) districts subject to certain restrictions.
The ordinance also amended Section 18.30.020(33) relating to theaters in a C -2 zone
and added a new section, 18.70.010, regarding nonconforming adult entertainment
establishments.
On October 26, 1989, Hon. Mary Wicks Brucker, Judge of the Superior Court,
declared Ordinance No. 1465 unconstitutional. The Court was apparently troubled
by the 10 percent "stock -in- trade" provisions of certain adult use definitional
sections, in that the City "had the opportunity to study the actual effects of an adult
entertainment business within its confines and failed to do so ", and that,
consequently, the Ordinance failed "to afford adult entertainment establishments a
reasonable opportunity to conduct business in the City of Tukwila."
Of primary concern to many communities has been the compatibility of these uses
and their associated impacts when in close proximity to residential zones. These
concerns were documented in Northend Cinema v. City of Seattle (1978), as refer-
enced in the March 1988 report. The impact on the Greenwood neighborhood, as
demonstrated, provided the basis for a decision in favor of the City of Seattle. In
Yo v. American Mini Theaters (1976), the United States Supreme Court initially
established that the state has a legitimate right to differentiate adult movie theaters
from other movie theaters because of those impacts.
SUPPLEMENTAL STAFF REPORT 90 -1-CA
Page 3
Since the Superior Court's decision in our case, the planning staff has completed
additional research to ensure that the proposed amendments to the zoning code
comply with the Court's ruling.
The entire issue may best be summarized in the concluding statement from a simi-
lar report prepared by the League of Oregon Cities and the Bureau of Governmental
Research and Service at the University of Oregon in February, 1985;
"A local government may save considerable time, money and controversy by care-
fully preparing to meet adult business issues before major community incidents
occur. Although adult businesses enjoy certain constitutional protections, commu-
nities can, through business licensing and /or land use regulation, ensure that the
tangible, negative impacts of such businesses are minimized."
The March 1988 Staff Report reviewed the legal history and land use aspects of adult
entertainment zoning. This supplemental staff report adds additional information
and review to the 1988 report. In summary, the experience of other jurisdictions
regarding the impact on crime, property values, and land use compatibility has
shown that the negative impacts of adult entertainment uses have quantifiable and
identifiable consequences.
DISCUSSION
Decision Criteria
Tukwila Municipal Code, 18.80.010, states that the "council may amend, change,
modify or repeal regulations and restrictions as established in this title... ". Further
more, any "change in the maps or text of this title...shall be refereed by the council to
the city planning commission. The commission, after due public notice and hear-
ing, shall submit a report to the council containing its recommendations thereon."
(Ord. 1247 s1(part), 1982).
Additional information has been gathered and reviewed. Primary research was
conducted at the Municipal Research and Services Center library. Interviews have
also been conducted with Andrea Vangor, Executive Director of Washington
Together Against Pornography and Gerard J. Scheehan, Legislative Director for the
American Civil Liberties Union of Washington. This additional data has assisted in
review of the ordinance' need to meet judicial scrutiny.
New data also provided additional examples from other cities in the region who
have established adult zoning designations. The cities of Edmonds, Everett, Lynn-
wood and Issaquah have each taken an approach similar to Seattle's by establishing
some form of adult use zoning designations.
SUPPLEMENTAL STAuF REPORT 90 -
Page 4
It has been the concern of the Courts that any attempt to regulate the location of
adult businesses not infringe on protected First Amendment rights. In redrafting
the ordinance, care has been taken to address those issues. The intent again, is not
to regulate the content of adult entertainment, but to locate those uses in a more
compatible environment to their potential impact.
Adult Entertainment Uses -- Impact on Criminal Activity
From our own experience in Tukwila, we know that the presence of adult business
uses created a paradox with respect to criminal activity. Our data shows that crimi-
nal activity increases fairly dramatically in and around adult business uses when
compared to adjoining retail uses, but much of that criminal activity goes unre-
ported because it is consensual in nature. The paradox, then , is that although crim-
inal activity increases when adult business uses are introduced, reported criminal
activity is actually similar to that generated by other retail uses.
For example, the deposition and trial testimony in the World Wide Video v. City of
Tukwila case made clear that employees at the World Wide Video establishment are
aware that both self - masturbation and masturbation of others occur in the peep
show booths. Employees there have had to clean semen from the various booths.
This fairly graphic testimony was confirmed by a patron of World Wide Video, who
was in the process of masturbating in a peep show booth. By pure coincidence, a
Tukwila Police officer on routine business inspection happened to observe the
patron in the act. The patron further testified that another patron in an adjoining
peep show booth was able to make contact with the first patron's genitals through
an opening in the partition separating the two booths. Although the above testi-
mony unambiguously describes criminal conduct, Tukwila Police will only be able
to detect this type of activity when it is reported. Since the participants are engaging
in this activity by agreement, this activity goes unreported.
Established Legal Guidelines
One part of a four -part test established by the U.S. Supreme Court in United States v
O'Brien (1968), states that any government interest must be "unrelated to a suppres-
sion of free expression ". This criteria has been reiterated in Young, Northend Cin-
ema and Playtime Theaters Inc. y City Q1 Renton. The entire test set forth in
O'Brien states that "governmental regulation is sufficiently justified, despite its
incidental impact upon a First Amendment interest,
1) if it is within the constitutional power of the government;
2) if it furthers an important or substantial governmental interest;
3) if the government interest is unrelated to a suppression of free expression;
and
SL:': `....EMENTAL S1..FF REPORT
90 -1-CA
Page 5
4) if the incidental restrictions on First Amendment freedom is no greater
than is essential to the furtherance of an interest."
The O'Brien test points out the care with which an adult business zoning ordinance
must be drafted. As was stated in the March 1988 Staff Report;
"Regulation of adult uses, especially with regard to theaters and bookstores
which are protected under the First Amendment, walk a thin line between
valid land use control and unconstitutional restraint of free speech. While
each case is unique, the courts appear to follow four general rules or guidelines
in deciding adult use zoning cases."
The four guidelines established by the courts, briefly stated, refer to:
1) the avoidance of overly tight zoning which might severely restrict use,
2) a factual record that regulations are truly zoning in intent,
3) no broad discretionary powers granted to public officials,
4) ordinances must be dear, especially in their definitions.
To meet these established precedents and guidelines, three major issues have been
identified regarding the previous ordinance to be addressed by the new ordinance.
Those issues are:
1) The percentage of adult material needed as "stock -in- trade" to be consid-
ered an adult business establishment.
2) The availability of adequate location possibilities to avoid restrictions that
could be considered an infringement of free speech.
3) Establishing an avenue for administrative appeal to the 90 day
"nonconforming use" abatement provisions.
Stock -in -Trade
In order to better establish what is the adult video market in Tukwila, a survey was
taken of 15 video rental stores in the City and surrounding area. Only one, World
Wide Video, was exclusively adult in its offerings. Excluding World Wide Video,
the range of adult video business started at 0% and topped at 33 %. The average per-
centage of adult video rentals to total business for the 11 stores that indicated a
percentage of adult video business was slightly more than 25 %. When World Wide
Video is excluded from that average it drops to slightly less than 18 %. The total
number of adult titles averaged slightly less than 10% of the entire number of titles.
Only one store did not carry any adult titles in stock.
SL 'LEMENTAL S( .FF REPORT
90 -1-CA
Page 6
In addition, The Attorney General's Commission on Pornography -Final Report,
July 1986 asked three questions of a similar nature. The Commission's survey
received responses from 2279 stores across the country which carried some sort of
adult material. The term "adult" was not explained or defined in the survey. The
questions asked about gross dollar volume, percent of daily transactions and per-
centage of inventory in adult materials. 80% to 84% of the respondents indicated
they did 30% or less of their business in adult materials.
These surveys have been utilized as the rationale for changing the current 10%
stock -in -trade criteria for defining an adult business to 30% of stock -in- trade.
Zoning
The following illustration is helpful to understanding the next difference between
the revised Ordinance and Ordinance #1465.
By general categories of Single Family, Multi - Family and Industrial - Commercial the
City breaks down to this acreage;
Single Family 1,576 acres
Multi- Family 199 acres
Ind. -Comm 2.730 acres
TOTAL 4,505 acres
The City of Tukwila utilizes cascading zoning. This allows a use from a less intense
zone to exist in a more intense zone while maintaining less intense uses exclusively
in those zones, such as single family zones. This technique allows a greater variety
of uses as zones become more intense. For example, a commercial use may exist in
an industrial zone.
The M -1 and CM zoning classifications are proposed additions to the M -2 zone as
areas in which adult businesses are permitted. By including these zones, an addi-
tional 1071 acres are added to the existing 1148 acres zoned M -2. The 1000 foot buffer
from residential zones and uses is retained. Under Ordinance No. 1465, adult enter-
tainment uses were outright permitted in M -2 zones. When the 1989 annexations
are considered, the M -2 zones constitute nearly one - quarter of the total area of the
City. Although retail space is available for lease in the M -2 zones, and that other
retail outlets exist in the M -2 zones, Judge Brucker found that adult entertainment
establishments were not afforded a reasonable opportunity to locate in Tukwila.
As a general category, all commercial - industrial zones comprise 2730 acres. Adding
the M -1, CM and M -2 zones together brings the total acreage zoned to allow adult
businesses to 2219 acres. This comprises slightly less than half of all acreage in the
City. The map to be presented will help to illustrate this change more clearly along
with those areas excluded due to proximity to residential areas, schools, parks and
churches. Excluded areas will significantly reduce the 2219 acre total.
SUPPLEMENTAL S( SF REPORT
i
90 -1-CA
Page 7
Nonconforming Provisions
The appeal provision is established to help ensure that adult uses do not suffer eco-
nomic harm by virtue of the 90 -day nonconforming use provision. Although the
90 -day period has been upheld by the state Supreme Court in another case, the Court
made clear that the 90-day provision was reasonable there largely because the busi-
ness affected had no substantial unrecouped capital investment in the building and
it was able easily to avoid its lease. If, for example, an existing adult entertainment
business in Tukwila, owns its building, and has not yet recovered its investment
through depreciation and the like, a period longer than 90 days may be required.
Any appeal to the requirement for a non - conforming adult business to conform
must be made within 60 days of the effective date of the ordinance. Within 10 days
of receiving the notice of appeal, the City Clerk will schedule a hearing before the
designated hearings examiner. No more than 20 days following the receipt of the
notice of appeal the hearing will be scheduled. No more than 3 days after the hear-
ing a written decision by the hearing examiner will be issued. The hearings exam-
iner's decision is final unless appealed to the superior court within 20 days of the
hearing examiner's decision.
1
CONCLUSIONS
In summary, the additional research conducted has included Municipal Research
library study of other jurisdictions' experience, review of new and established legal
precedent, evaluation of criminal activity in and around local adult businesses and
contact with interested parties in this issue. The key elements addressed through
the three recommended revisions to the City's Adult Entertainment Ordinance are;
1) Revised stock -in -trade definition to read 30% rather than 10 %, based on
local survey data and the survey used in the Attorney General's Report,
2) Proposed addition of the M -1 and CM zones to the M -2 zone,
3) Establish an avenue for administrative appeal for the conformance of
non - conforming adult uses.
I
RECOMMENDATIONS
I
The planning staff recommends that the Planning Commission forward their rec-
ommendation to the City Council with their thoughts and comments concerning
this proposed ordinance.
PUBLICATIONS
ATTACHMENT A
BIBLIOGRAPHY
United States Department of Justice. Attorney General's Commission on
Pornography, Final Report July 1986 Volume I & U
Summary of the Report of the Attorney General's Commission, July 1986,
prepared by Morality in Media, INC.
Washington Together Against Pornography. Various materials including a
"Starter Kit ".
Citizens for Decency Through Law, Inc. Legal Aspects
"The Drive to make America Porn Free" U.S. News and World Report,
February 6,1989
Comprehensive Plan Map, City of Auburn
Adult Use Zoning Study, November 1982, City of Kent
'Pornography: Federal Laws, But little Federal Enforcement" by Frank York,
Family Policy Insights, Vol. N, No. 5, July 1986
"A Dandy Dispute ", Seattle Post Intelligencer, March 22, 1990
Des Moines Adult Use Study, August 1984, R.W. Thorpe & Associates, Inc.
"Regulating Sex Businesses" by William Toner, ASPO Report #327, Planning
Advisory Service
"Porn Foes Force Showdown" by Marsha King, Seattle Times, October 13, 1988
"Kent May Crack Down on Pornographic Materials" by Lyle Price, Valley Daily
News, November 7, 1989
"Ruling Put Renton on Legal Map - The Forbes Decision: Two Years Later" by
Clyde Weiss, Valley Daily News, February 28,1988
"Anti-Porn Wars Last Shots Still to be Fired: New Forms of Adult Shops Mean
New Laws" by Kathy Hall, Valley Daily News, February 28,1988
Director's Report on Adult Entertainment, August 1989, Seattle Department of
Construction and Land Use
"Dealer Peddled Porn Across Northwest" by Eric Nalder, Seattle Times, August
18,1985
"Some Explicit Material Linked to Crime Figure" by Peter Lewis, Seattle Times,
October 27,1986
"Crime -Ring Indictments Tied to Seattle" Staff /AP, Seattle Times, April 3, 1987
•
"How May LoccA Governments Regulate 'Adult' Businesses ?" Local
Government Notes and Information, Urban Service Program of the League of
Oregon Cities and the Bureau of Governmental Research and Service,
University of Oregon, February 1985
"Zoning for Adults Only ", Zoning News, APA, August 1985
Municipal Regulation of X -Rated Films and Sexually Oriented Businesses" by
Marsha Wolf, Esq. and Lewis Goldshore, Esq., New jersey Municipalities,
February 1985
Memo -City of Spokane from City Manager, City Attorney, Director of Planning
to Mayor and Council, Re: Preliminary Report on Regulation of Adult
Entertainment Land Uses
ORDINANCES AND MUNICIPAL CODES
City of Kent Ord. 2687, KMC 15.02
City of Auburn AMC 18.74
City of. Des Moines Ord. 655, DMMC 18.04
City of Renton RMC 4-735
City of Poulsbo Ord. 84-18
City of Bothell Ord. 1170
City of Tacoma TMC 66.5 - 66.7, Ord 22205
City of Redmond Ord. 1120
City of Seattle SMC 6.27, 6.42, 23.47, 23.54, 23.84.030
City of Edmonds Ord. 2279
City of Issaquah Ord. 1701
City of Bellevue BMC 5.44, 20.20 -20.50
City of Lynnwood Ord. 1520
City of Mount Vernon Panoram Ord.
City of Everett Ord. 1303 - 86,1197 -85
COUNTY AND STATE REFERENCES
King County KCC 6.08
Pierce County Ord. 86 -119
Washington Administrative Code WAC 314-16 -125
Person answering questions:
Position with store:
ATTACHMENT B
ADULT VIDEO SURVEY
Initial:
Date:
Introduction:
"Hello, my name is with the City of Tukwila Planning Division. We
are conducting a survey of video stores in the City and surrounding area. Do you or
your manager have a few minutes to answer some questions about your business ?"
(I f "no", thank them and go on to next call.)
Confirm name, address and phone number of store:
What is the total square footage of your store (or devoted to video if store is 7 -11,
etc.)?
Total number of titles available for rent:
Do you carry adult (X-rated) titles? Yes No*
How many titles are adult (X-rated)?
Are they displayed on shelving or by catalog?
(If on shelving) What is the amount of square footage used for display?
Approximately what percent of your business is adult (X- rated) titles?
"If no adult videos are carried this ends the survey.
"Thank you for your time."
STORE
ATTACHMENT B
VIDEO SURVEY - ADULT VIDEOS
TOTAL ADULT % ADULT % OF TOTAL
TILES TITLES OF TOTAL RENTALS -ADULT
1 600 600 100 100
2 4000 500 -700 13-18 30
3 1500 N/A N/A N/A
4 N/A 200 N/A 20
5 4000 500 13 33
6 5000 200.300 4-6 5
7 7000 600 9 10
8 4000 N/A N/A 10
9 5200 820 16 25
10 N/A N/A N/A N/A
11 2113 150 7 5
12 4000 N/A N/A N/A
13 2266 400 -500 18-22 30
14 3000 200 7 N/A
15 8000 200 3 10
AVG. 3898 397 -434 8.6-9.4 25.27
(17.8 WHEN
W.W.V. EXCLUDED)
* Of the 15 stores called, 13 stated that they carried some adult titles. One store did
not carry any adult titles and one store was not sure how many or how much
business they do in them. Only one store carried exclusively adult titles.
ACREAGE PER ZONE
ATTACHMENT C
Below are the estimated acres per zone as calculated from the 1" to 600' map using
the tracing method and planimeter.
VACANT
ZONE ACRES ACREAGE
RA 259 14
R1 -20.0 35 461
R1 -12.0 121 (all
R1 -9.6 48 R -1
R1 -7.2 1113 combined
R2. 11 0
R3 70 20
R4 34 3
RMH 84
PO 51 6.6
Cl 12 1.2
C2 294 63
CP 154
CM 570 6
Ml 501 27
M2. 1041 98
M2L 14Z (both M2
TOTALS 4,505 699.8
Totals by general categories:
Single Family 1,576 acres
Multi- family 199 acres
Ind.- Comm. UN aces
ANNOTA'ED WORK COPY
CITY OF TUKWILA
WASHINGTON
ORDINANCE NO
AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, REENACTING AND AMENDING
REGULATIONS FOR ADULT ENTERTAINMENT USES, AMENDING SECTION 18.06.825 OF
THE TUKWILA MUNICIPAL CODE TO DEFINE "ADULT ENTERTAINMENT ESTABLISHMENTS ",
ADDING A NEW SUBSECTION 18.38.020(16) TO THE TUKWILA MUNICIPAL CODE TO
ALLOW ADULT ENTERTAINMENT FACILITIES TO LOCATE IN THE C -M (INDUSTRIAL PARK)
DISTRICT, AMENDING SECTION 18.30.020(33) RELATING TO THEATERS IN C -2 ZONING
DISTRICTS, AND ADDING A NEW SECTION 18.70.110 TO THE TUKWILA MUNICIPAL CODE
REGARDING NONCONFORMING ADULT ENTERTAINMENT ESTABLISHMENTS.
WHEREAS, the City of Tukwila Planning Commission conducted a public hearing
at which it heard testimony, reviewed exhibits, and deliberated on the issue of
appropriate land use regulations governing adult entertainment establishments
in the City of Tukwila, and
WHEREAS, as a result of said deliberation, the Planning Commission adopted
findings and conclusions and formulated a recommendation to the City Council,
and
WHEREAS, having held further public hearings on the matter and having
considered the record before the Planning Commission and the recommendations of
that body, the City Council concurred with those recommendations and adopted
findings and conclusions, now, therefore,
THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Adult Entertainment Establishments Defined. Section 18.06.825
of the Tukwila Municipal Code is hereby amended to read as follows:
18.06.825 Adult Entertainment Establishments.
A. Legislative Findings. The City Council of the City of Tukwila,
Washington, declares that adult entertainment establishments as
defined in this chapter are permitted uses in the City of Tukwila.
In order to preserve and protect Tukwila's unique quality of life,
however, the City Council finds that adult entertainment
establishments must be situated so as to minimize contact with the
City's children, churches, parks, schools, libraries, and other
places where children and families gather.
W \TUKW \007ENT.OR -2
The City Council finds further that Tukwila's experience, and the
experiences of other cities in and around Tukwila and in other areas
of the country confirm that adult entertainment establishments can
lead to an increase in crime and unreported criminal activity, a
decrease in property values and the, use and enjoyment of such
property by its owners, and to undesirable blighting of the city and
its neighborhoods. Accordingly, the City Council declares the
provisions of this ordinance as they relate to adult entertainment
establishments to be in the best interests of the citizens of the
City of Tukwila, simultaneously ensuring the protection of the
health, safety and welfare of Tukwila residents, while also
permitting adult entertainment establishments to locate in areas
comprising more than forty percent of the City of Tukwila.
Page 1
C.
B. "Adult entertainment establishments" means adult motion picture
theaters, adult drive -in theaters, adult bookstores, adult cabarets,
adult video stores, adult retail stores, adult massage parlors, adult
sauna parlors or adult bathhouses, which are defined as follows:
W \TUKW \007ENT.OR -2
1. "Adult bathhouse" is a commercial bathhouse which excludes
any person by virtue of age from all or any portion of the
premises.
2. "Adult bookstore" is a retail establishment in which thirty
percent or more of the "stock in trade" consists of books,
magazines, posters, pictures, periodicals or other printed
materials distinguished or characterized by an emphasis on
matter depicting, describing or relating to "specified sexual
activities" or "specified anatomical areas ".
[a. Ten percent or more of the "stock in trade" consists of
books, magazines, posters, pictures, periodicals or other
printed materials distinguished or characterized by an
emphasis on matter depicting, describing or relating to
"specified sexual activities" or "specified anatomical
areas "; and
b. any person is excluded by virtue of age from all or part
of the premises generally held open to the public where
such material is displayed or sold.]
3. "Adult cabaret" is a commercial establishment which presents
go -go dancers, strippers, male or female impersonators, or
similar types of entertainment and which excludes any person
by virtue of age from all or any portion of the premises.
4. "Adult massage parlor" is a commercial establishment in which
massage or other touching of the human body is provided for
a fee and which excludes any person by virtue of age from all
or any portion of the premises in which such service is
provided.
5. "Adult motion picture theater" is a building, enclosure, or
portion thereof, used for presenting material distinguished
or characterized by an emphasis on matter depicting, describing
or relating to "specified sexual activities" or "specified
anatomical areas" for observation by patrons therein.
6. "Adult retail store" is a retail establishment in which thirty
percent or more of the "stock in trade" consists of items,
products or equipment distinguished or characterized by an
emphasis on or simulation of "specified sexual activities" or
"specified anatomical areas ".
(a. Ten percent or more of the "stock in trade" consists of
items, products or equipment distinguished or
characterized by an emphasis on or simulation of
"specified sexual activities" or "specified anatomical
areas "; and
b. any person is excluded by virtue of age from all or part
of the premises generally held open to the public where
such items, products or equipment are displayed or sold.)
7. "Adult sauna parlor" is a commercial sauna establishment which
excludes any person by virtue of age from all or any portion
of the premises.
8. "Adult video store" is a retail establishment in which thirty
percent or more of the "stock in trade" consists of prerecorded
video tapes, disks, or similar material distinguished or
Page 2
characterized by an emphasis on matter depicting, describing
or relating to "specified sexual activities" or "specified
anatomical areas ".
[a. Ten percent or more of the "stock in trade" consists of
prerecorded video tapes, disks, or similar material
distinguished or characterized by an emphasis on matter
depicting, describing or relating to "specified sexual
activities" or "specified anatomical areas "; and
b. any person ie excluded by virtue of age from all or any
part of the premises generally held open to the public
where such prerecorded video tapes, disks or similar
material are displayed or sold.]
C. "Specified anatomical areas" means:
2. Human male genitals in a discernibly turgid state even if
completely or opaquely covered.
D. "Specified sexual activities" means:
1. Acts of human masturbation, sexual intercourse or sodomy; or
2. Fondling or other erotic touching of human genitals, pubic
region, buttock or female breast; or
1. Less than completely and /or opaquely covered human genitals,
pubic region, buttock, or female breast below a point
immediately above the top of the areola.
W \TUKW \007ENT.OR -2
3. Human genitals in a state of sexual stimulation or arousal.
E. "Stock in trade" means:
1. The dollar value of all products, equipment, books, magazines,
posters, pictures, periodicals, prerecorded video tapes, discs,
or similar material readily available for purchase, rental,
viewing or use by patrons of the establishment, excluding
material located in any store room or other portion of the
premises not regularly open to patrons; or
2. The number of titles of all products, equipment, books,
magazines, posters, pictures, periodicals, other printed
materials, prerecorded video tapes, discs, or similar material
readily available for purchase, rental, viewing or use by
patrons of the establishment, excluding material located in
any store room or other portion of the premises not regularly
open to patrons.
Section 2. Adult Entertainment Establishments allowed in C -M M- District.
A new subsection 18.38.020(16) 13.42.020(7) is hereby added to the Tukwila
Municipal Code to read as follows:
(16) {a-} Adult entertainment establishments, subject to the following
location restrictions:
A. No adult entertainment establishment shall be allowed within the
following distances from the following specified uses, areas or
zones, whether such uses, areas or zones are located within or
outside the City limits;
1. In or within 1,000 feet of any R -1, R -2, R -3, R -4, or RMH zone
district or any other residentially zoned property;
2. In or within 1,000 one mile feet of:
Page 3
a.
public or private school with curricula equivalent to
elementary, junior or senior high schools, or any
facility owned or operated by such schools, which has
twenty -five percent or more of its students under the
age of eighteen; and
b. care centers, preschools, nursery schools or other child
care facilities.
3. In or within 1,000 feet of:
a. public park, trail, or public recreational facility; or
b. church, temple, synagogue or chapel; or
c. public library.
B. The distances specified in subsection A shall be measured by
following a straight line from the nearest point of the property
parcel upon which the proposed use is to be located, to the nearest
point of the parcel of property or land use district boundary line
from which the proposed land use is to be separated.
C. No adult entertainment establishment shall be allowed to locate
within 1,000 feet of an existing adult entertainment establishment.
The distance specified in this section shall be measured by following
a straight line between the nearest points of public entry into each
establishment.
Section 3. Theaters in C -2 Districts. Section 18.30.020(33) of the
Tukwila Municipal Code is hereby amended to read as follows:
(33) Theaters, except those theaters which constitute "adult entertainment
establishments" as defined by this Code.
Section 4. Nonconforming Uses. A new section 18.70.110 is hereby added
to the Tukwila Municipal Code to read as follows:
18.70.110 Nonconforming Adult Entertainment Establishments; Extensions
of Time. Notwithstanding any other provision of this Chapter, any adult
entertainment use or establishment which is rendered nonconforming by the
provisions of Ordinance of the City shall be terminated or
discontinued within 90 days from the effective date of that ordinance.
A. The owner or operator of any adult entertainment use or establishment
which is rendered nonconforming by the provisions of Ordinance
of the City may appeal the 90 -day termination provision of this
section by filing a notice of appeal with the City Clerk within 60
days of the effective date of this section.
B. Within 10 days of receipt of a notice of appeal, the City Clerk shall
schedule a hearing on the appeal before a hearing examiner. The
hearing shall be no later than 20 days from the date of receipt by
the City of the notice of appeal, unless extended by mutual agreement
of the parties. The hearing examiner shall be the City Clerk or
his /her designee.
C. Within 3 days, excluding weekends and holidays recognized by the
City, from the date of the hearing on an appeal under this section,
the hearing examiner shall issue a written decision, which shall set
forth the hearing examiner's findings of fact and conclusions of law.
The hearing examiner shall consider the following factors and any
other factors that he /she determines to be relevant or helpful in
reaching a decision:
W \TUKW`007ENT.OR -2
1. The harm or hardship to the appellant caused by the 90 -day
termination provision of this section;
Page 4
2. The benefit to the public to be gained from termination of
the use;
3. The nature of the leasehold or other ownership interest that
an appellant may have in premises occupied by the adult
entertainment use;
4. Restrictions or lack of same imposed on an appellant's use of
such premises by a lease or other binding agreement;
5. Amounts expended by an appellant for improvements to such
premises or for necessary equipment and the extent to which
those amounts have been recovered through depreciation, tax
savings, or whether such improvements are contemplated to be
left as property of the lessor; and
6. Any clear evidence of substantial economic harm caused by
enforcement of the 90 -day termination provision of this
section.
D. Appeal and hearing:
W \TUKW \007ENT.OR -2
1. Any person aggrieved by the action of the hearing examiner in
refusing to extend beyond 90 days the period in which a
nonconforming use must terminate operations shall have the
right to appeal such action to the City Board of Adjustment,
or to such other hearing body as may hereafter be established
by the City Council for the hearing of such appeals, by filing
a notice of appeal with the Clerk within 10 calendar days of
receiving notice of the decision of the hearing examiner.
2. The hearing body, upon receipt of a timely notice of appeal,
shall set a date for a hearing of such appeal within 20 days
from the date of such receipt. The hearing body shall hear
testimony, take evidence and may hear oral argument and receive
written briefs. The filing of such appeal shall stay further
action of the City, pending the decision of the hearing body.
3. The decision of the hearing body on an appeal from a decision
of the hearing examiner shall be based upon a preponderance
of the evidence.
4. The decision of the hearing body shall be final unless appealed
to the superior court within 20 days of the date the decision
is entered.
Section 5. Severability. If any section, sentence, clause or phrase of
this ordinance should be held to be invalid or unconstitutional by a court of
competent jurisdiction, such invalidity or unconstitutionality shall not affect
the validity or constitutionality of any other section, sentence, clause or
phrase of this ordinance.
Section 6. Effective Date. This ordinance shall take effect and be in
full force five (5) days after publication of the attached summary which is
hereby approved.
Page 5
ATTEST /AUTHENTICATED:
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a regular
meeting thereof this day of , 1990.
ACTING CITY CLERK, JANE CANTU
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:.
ORDINANCE NO.
W \TUKW \007ENT.OR -2
APPROVED:
MAYOR, GARY L. VAN DUSEN
SUMMARY OF ORDINANCE NO.
AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, ESTABLISHING REGULATIONS FOR
ADULT ENTERTAINMENT USES, AMENDING SECTION 18.06.825 OF THE TUKWILA MUNICIPAL
CODE TO DEFINE "ADULT ENTERTAINMENT ESTABLISHMENTS ", ADDING A NEW SUBSECTION
18.38.020(16) TO THE TUKWILA MUNICIPAL CODE TO ALLOW ADULT ENTERTAINMENT
FACILITIES TO LOCATE IN THE C -M (INDUSTRIAL PARK) DISTRICT, AMENDING SECTION
18.30.020(33) RELATING TO THEATERS IN C -2 ZONING DISTRICTS, AND ADDING A NEW
SECTION 18.70.110 TO THE TUKWILA MUNICIPAL CODE REGARDING NONCONFORMING ADULT
ENTERTAINMENT ESTABLISHMENTS.
On , 1990, the City Council of the City of Tukwila
passed Ordinance No. which provides as follows:
Section 1. Amends Section 18.06.825 of the Tukwila Municipal Code to define
"Adult Entertainment Establishments ".
Section 2. Adds a new subsection 18.38.020(16) to the Tukwila Municipal Code
to allow adult entertainment establishments to locate in C -M (industrial park)
districts subject to certain restrictions.
Section 3. Amends Section 18.30.020(33) of the Tukwila Municipal Code
relating to theaters allowed in C -2 zoning districts.
Section 4. Adds a new section 18.70.110 to the Tukwila Municipal Code
regarding nonconforming adult entertainment establishments.
Section 5. Provides for severability.
Section 6. Establishes an effective date.
The full text of this ordinance will be mailed without charge to anyone who
submits a written request to the City Clerk of the City of Tukwila for a copy of the
text.
Approved by the City Council at their meeting of
, 1990.
W \TUKW \020ENT.OR - 1
JANE CANTU, ACTING CITY CLERK
C
City of Tukwila
6200 Southcenter Boulevard
Tukwila Washington 98188
433 -1800
Gary L VanDusen, Mayor
CITY OF TUKWILA
PUBLIC HEARING NOTICE
Notice is hereby given that the City of Tukwila Planning
Commission will conduct a public hearing on July 19, 1990, at
8:00 p.m. in the City Council Chambers at Tukwila City hall,
6200 Southcenter Boulevard, to consider the following:
Planning Commission Public Hearing
1. Case Number: 90 -1 -CA: Adult Entertainment
Applicant: City of Tukwila
Request: Revision of the Tukwila Zoning Code affecting
the Adult Entertainment Ordinance - changes
proposed are:
1) Revised stock -in -trade definition to 30%
rather than 10 %,
2) Proposed addition of the M -1 and CM zones
to the M -2 zone,
3) Establish a process for administrative
appeal for the conformance of non - conforming
adult uses.
Persons wishing to comment on the above cases may do so by
written statement or by appearing at the public hearing.
Information on the above cases may be obtained at the Tukwila
Planning Department. The City encourages you to notify your
neighbors and other persons you believe would be affected by the
above items. If you have any questions or comments, please
contact:
Jack Pace, Senior Planner
6300 Southcenter Boulevard
Tukwila, Washington 98188
206 - 431 -3686
L4W OFFICES OF
Burns and Hammerly, P.S.
500 - 108th Avenue N.E. • Suite 770 • Bellevue, WA 98004 • (206) 646.6546 • FAX tt (206) 454 -6195
July 16, 1Q90
Tukwila Planning Commission
City of Tukwila
6200 Southcenter Boulevard
Tukwila, WA 98188
Attention: Jack Pace, Senior Planner
IACK R. BURNS
MARY L. HAMMERLY
This office represents Little Darlins Enterprises, Inc. which
operates an adult business known as Little narlins, and Walt
and Teresa Szafryk who operate an adult business known as
Dandy's. Dandy's is presently located within the boundaries of
the City of Tukwila. Little Darlins will be located within the
City of Tukwila once the recent annexation becomes effective.
On behalf of these two businesses, I have reviewed the
Supplemental Staff Report regarding adult entertainment and the
proposed ordinance revisions. In summary, it is my belief
that, as a matter of law and as a matter of policy, there is an
insufficient basis presented to terminate uses rendered
nonconforming by the ordinance as proposed in new Section
18.170.110.
As noted in the Supplemental Staff Report, legal decisions of
the United States Supreme Court provide guidance and restraints
upon the city's ability to regulate adult entertainment uses
through zoning. The Supplemental Staff Report, in large part,
accurately describes the holdings of the pertinent legal
decisions. Significantly, however, the report omits any
reference to state law decisions. Decisions of our state
Supreme Court have interpreted the Washington State
Constitution to provide more protection to speech than does the
First Amendment to the United States Constitution.
Under Article I, S5 of the Washington State Constitution, a
time, place or manner restriction upon speech may only be
imposed when there has been a showing of past abuse of speech
rights and, then, only if the regulation is content - neutral,
and narrowly tailored to serve a compelling governmental
interest. Bering v. Share, 106 Wn.2d 212 (1986). This state
constitutional standard differs markedly from the standard
imposed by the First Amendment to the United States
Constitution as enunciated in the decisions of the United
C
States Supreme Court in Young v. American Mini Theatres and
City of Renton v. Playtime Theatres, the cases cited and relied
upon in the supplemental Staff Report.
Given the lack of any empirical evidence that the business of
Dandy's or Little Darlins has created or is likely to create
significant secondary effects, there is no sufficient legal
basis to justify restricting their business activities at their
chosen locations.
Furthermore, as a matter of policy, there are no sound reasons
to depart from the established standard of granting
nonconforming user status to existing businesses when there is
a change in the zoning code. The business of Dandy's was
properly located and licensed prior to its annexation into the
City of Tukwila. Similarly, the business of Little Darling is
currently legally operating and will continue to be so when it
is finally annexed into the City of Tukwila. Generally, when
an annexation takes place, the City of Tukwila zoning code
grants nonconforming user status to all businesses that existed
in areas annexed into the City. For several reasons, the City
should not depart from this well - established practice and
standard.
1. During the annexation campaign and process, property
owners in the affected areas where assured that existing uses
would be allowed to continue as nonconforming users.
2. Neither the business of Dandy's nor Little Darlins
presents any significant secondary effects that would justify
differential treatment from other nonconforming users.
In particular, in a recent hearing before the Tukwila City
Council, the Chief of Police of the City of Tukwila
acknowledged that Dandy's, since its annexation into the City
of. Tukwila, had presented no significant law enforcement
problems. Any law enforcement activity associated with Dandy's
was similar to or less than that presented by any other
drinking or entertainment establishment.
With respect to Little Darlins, prior to January, 1990, Little
Darling operated using a business format which exempted it from
the requirements of the King County Code that it be licensed as
an adult entertainment business. In particular, prior to
January, 1990, no dancer appeared nude or partially nude. In
January, 1990, the King County Superior Court authorized
Dandy's to proceed to operate as an adult entertainment
facility. After that decision, the only change in the manner
of operation of the business was that dancers appeared nude or
partially nude on a stage which was located six feet from the
nearest patron. Otherwise, the operation of the business
remained unchanged. Subsequent to that business format change,
there has been no impact on the surrounding community in terms
of increased crime or other adverse, secondary effects.
Based upon my experience, the experience of Little marlins and
the experience of Dandy's, adult cabarets have no effect
whatsoever external to the business in the form of
demonstrable secondary effects which would justify terminatina
a nonconforming user.
Analysis of the staff report supports this view.
1. The staff report and draft ordinance suggest that a
secondary effect of adult cabarets is a decrease is property
values. To my knowledge, no study has been done on the effect
of adult cabarets on surrounding property values. In my
practice, I have had occasion to review tax and appraisal
records for adult cabarets, and similar records for surrounding
properties. Based on that review, I can find no negative
effect of adult cabarets on surrounding property values.
In conversations with Jack Pace, Senior Planner, he indicated
to me that the City has not undertaken any independent study of
the effect of adult cabarets on surrounding property values.
Accordingly, it appears as if this is an insufficient basis
upon which to deny nonconforming user status to adult cabarets.
2. Another justification offered for regulating adult
cabarets is an increase in crime and unreported criminal
activity. As indicated above, the experience of this City with
Dandy's, and King County with Little Darlins, will not support
a conclusion that the existence of adult cabarets leads to an
increase in unreported crime and criminal activity. Just to
the contrary, the Chief of Police indicated that since Dandy's
annexation into Tukwila, the City has not experienced any
unusual or increased level of law enforcement activity.
The unreported criminal activity referenced by the Supplemental
Staff Report at page 4 is unique to that particular kind of
business. Furthermore, the report is so nonspecific as to be
meaningless in analyzing the nature of the "unreported criminal
activity."
3. The report and proposed ordinance suggest that adult
cabarets somehow result in "undesirable blighting of the city
and its neighborhoods." If blighting is a problem, and there
is no evidence in the Supplemental Staff Report to suggest that
it is, blighting can be dealt with directly, rather than
indirectly by forced amortization. If blighting does exist,
the proper approach is to remedy the blighting rather than to
move it down the street or around the corner. If the blighting
is caused by visual clutter, exterior landscaping, signage, or
exterior paint color, all of those matters can and should be
dealt with directly by regulations directed at the specific
evil perceived. The goal of the City should he to cure and
remedy the blight, not hide it.
Finally, if the decision is made to proceed with amortization,
my clients believe that the amortization process must take into
account the value of their businesses as a going concern, not
historical investment value. The actual and real effect of
amortization is to take a valuable property interest from a few
for the greater good of the City. As such, the state and
federal constitutions require that the government provide fair
compensation.
A going business on Pacific Highway South has a value. It is
not sufficient to say that you can locate that business
somewhere else because that relocation has a cost and, more
importantly, the new business, at least at the outset, is not
doing to generate the same revenues as the old.
Section 18.70.110(C)(5) contemplates using historic investment
as a measure of fair value for purposes of compensation; i.e.
the Hearing Examine will determine in some form that a certain
period of time will allow recovery of the historic investment.
A brief example will show that this method is simply inadequate
to compensate a business owner for the taking of his business.
Assume that a restaurant in the Southcenter area was purchased
twenty years ago for $20,000. Today, even though after
modernization and renovations have been recouped through
depreciation, the restaurant has a market value of $2,000,000.
To say to a business owner that he is only entitled to recover
his original $20,000 investment simply ignores his reasonable
investment based expectations and the realities of what
government is taking. Additionally, it would treat such an
owner unfairly when considered with a business owner who had
recently purchased a similar restaurant in the area for
$2,000,000, but had, had no time to recover his initial
investment.
The procedures of Section 18.70.110(C)(4), which would
apparently be used to shorten the amortization period if
leasehold premises could be used for another purpose,' are
similarly unrealistic. A businessman who runs a restaurant is
generally not equipped or knowledgeable in running a retail
store or other kind of business. Adult business owners are not
general retailers. By telling them that they cannot operate
their chosen business, the effect is to put them out of
business. The result is a taking that should and must he
compensated.
My clients respectfully submit that the only fair and equitable
manner, consistent with the state and federal constitutions, to
amortize an existing, nonconforming use out of existence is to
take into account the fair market value of the business at the
effective date of the ordinance and then, either pay that value
to the business owner for the taking, or allow a reasonable
time, based upon generally accepted accounting principles, to
recover that value.
In conclusion, my clients respectfully urge the Planning
Commission to carefully review the empirical evidence offered
to support the amortization provisions of the proposed
ordinance. Upon that review, we are convinced that you will
find that there is insufficient evidence to justify a departure
from long- standing policy which has granted nonconforming user
status to existing businesses when there is a zoning change.
We urge you to apply those standards consistently to this
proposed zoning change and direct your attention, not to
existing businesses, but to future businesses, in an attempt to
solve those problems that may occur in the future. The weight
of the evidence is that there are no current problems which
cannot be dealt with by regulations less intrusive upon the
protected speech activities of my clients.
JRB:sm
Very truly .you s,
IA )4
J \t. BURN
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JJK�r +
June 15, 1990
Sincerely,
eptA
jp /mcn
ck Pace
Senior Planner
CITY OF T UIi WILA
(Hill y,(1( ?TIICIiNTliR BO(:'LFI'i1I?D. T'1'lill' / /.;1, It';1SIIIM; '(1.Vl'8fl
Little Darlin's
15011 Pacific Highway S.
Seattle, WA 98188
Dear Sir or Madam:
Thank you for your interest.
IYI.iXEg1°urird : IY l;un l.. li/nhrr ru..1!n ,
In June of 1988 the Tukwila City Council passed a new adult
business zoning ordinance. Subsequently, a few specific
provisions of that ordinance have required revision. A
supplemental staff report has been prepared which explains in
detail what those revisions are and the basis for them.
Please find enclosed a copy of the "Supplemental Staff Report -
Adult Entertainment" which has been sent to you as an interested
party in advance of a Public Hearing. A hearing before the
Tukwila Planning Commission has not yet been scheduled. As soon
as it is scheduled, you will be notified. At this time your
written comments on this report and amended ordinance are
appreciated.
If you are unable to attend the Planning Commission hearing when
scheduled, the City Council will also be scheduling a hearing on
this issue. If you wish to be notified of that hearing please
let us know and we will again include you on our mailing list.
City of Tukwila
6200 Southcenter Boulevard
Tukwila Washington 98188
(206) 433 -1800
Gary L. VanDusen, Mayor
MEMORANDUM
To: Epic File 2 -88
From: Martin Nordb R search Analyst
Date: June 12, 1990
Re: Adult Entertainment Ordinance - SEPA DNS Amendment
This memo is added as a supplement to the SEPA checklist for EPIC
File 2 -88 to document changes made to the City of Tukwila's Adult
Entertainment Ordinance. The Environmental Checklist prepared
for the original Adult Entertainment Ordinance in 1988 determined
that there was no significant environmental impact. A
Determination of Non - Significance was issued at that time. The
changes noted below for the amended ordinance also have no
significant environmental impact.
These changes are based upon additional community and legal
research. They include:
1) the addition of the M -1 and CM zones to the M -2 zone as
zones allowing adult businesses,
2) revised stock in trade definition to read 30% rather than
10 %,
3) and establish a process for administrative appeal for
the conformance of non - conforming adult uses.
A Supplemental Staff Report has also been prepared to detail the
basis for these changes and is part of File 90 -1 -CA, code
amendment. ,...
Reviewed by SEPA Official (initial)
WAC 197 -11 -970
Description of Proposal ADULT ENTERTAINMENT ORDINANCE
Proponent PLANNING DEPARTMENT - CITY OF TUKWILA
Location of Proposal, including street address, if any
COVER THE ENTIRE CITY OF TUKWILA
Responsible Official Rick Beeler
Position /Title Planning Director
DETERMINATION OF NONSIGNIFICANCE
THE ORf1TNANCF WILL
Lead Agency: City of Tukwila File No. EPIC -2 -88
The lead agency for this proposal has determined that, it does not have a probable
significant adverse impact on the environment. An environmental impact statement
(EIS) is not required under RCW 43.21C.030(2)(c). This decision was made after
review of a completed environmental checklist and other information on file with the
lead agency. This information is available to the public on request.
Ei There is no comment period for this DNS
(] This DNS is issued under 197 -11- 340(2). Comments must be submitted by
. The lead agency will not act on this
proposal for 15 days from the date below.
Phone 433 -1846
Address 6200 Southcenter Boulevard Tukwila' 98188/
Date ��� L. ( / /(C Signature
You may appeal this determination to the City Clerk at City Hall, 6200 Southcenter
Boulevard, Tukwila, WA 98188 no later than 10 days from the above date by written
appeal stating the basis of the appeal for specific factual objections. You may be
required to bear some of the expenses for an appeal.
Copies of the procedures for SEPA appeals are available with the City Clerk and
Planning Department.
FM.ONS
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D R aid APARTMENTS
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ATTACHMENT E
TUKWILA ZONING MAP
ADULT BUSINESS
CITY OF TUKWILA
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MILLS & UCHIDA
(206) 292-9063
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